56. The Trade and Industry Committee Report saw little
merit in licensing by default. It set out a number of administrative
remedies for the frustration felt by those doing business with
the Export Control Organisation. Its recommendation on a time
limit for determination of appeals was accepted. [84]

58. In our July 2000 Report we expressed our concern
at the evidence we had received from those who had appealed in
1998, and recommended several changes to appeal procedures, including
the right of the appellant to participate. The Government Response
told us that procedures had been introduced to allow appellants
to present any new information or arguments in person.[86]

59. We devoted further detailed attention to appeals
in our March 2001 Report. We set out, as we had in our earlier
Report, the responses we had received from companies who had appealed
against a refusal. We noted that in no case had the 30 working
day time limit for determination been met, and recommended a rethink
of that target. We also called for some procedure to enable companies
to respond to the departments' doubts or concerns. [87]

60. Cm 5091 states that the draft Bill "will
allow for procedures to be prescribed by means of secondary legislation
as appropriate", but that it considers it desirable for detailed
procedures to be set out in guidance as at present.[88]
The only procedure referred to which will be in such secondary
legislation is the process of appealing against a refusal;[89]
the one area where in 1998 it was proposed to introduce primary
legislation. The proposal to make written advice that an export
did not require a licence  a NLR (no licence required)
decision  legally binding has been dropped.[90]
The Secretary of State told us that he had not considered putting
administrative procedures on a statutory basis to be a priority.[91]

61. Both Lord Scott and the DMA expressed disappointment
at the absence of proposals to put more of the licensing system
on a statutory footing.[92]
The DMA noted the breakthrough in the opportunity now offered
to industry to talk direct to FCO desk officers. Refusals of licences
are accompanied, within the constraints of security, by some sort
of reasons, a matter on which the Scott Report laid some emphasis.[93]
Lord Scott considered that the provision of reasons should be
a requirement rather than a practice.[94]

62. There are still very long delays in reaching
a decision on difficult licence applications. However, the Secretary
of State was of the view that the worst delays were due not to
administrative failures but to the need to get the necessary intelligence
and other information to come to a well-informed decision.[95]
The DMA suggested that an early refusal, triggering an appeal
if necessary and thus an opportunity to provide direct input into
the process, was better than a "protracted no".[96]
A refusal also triggers a notification to other EU states, potentially
preventing a competitor from such a state picking up the business.
Although the idea of licence by default has in effect been dropped,
Lord Scott told us that he had considered whether deemed refusals
or deemed grants would be more effective in bringing on a decision.[97]
The Secretary of State suggested that targets were now closer
to being met, but accepted that delays for purely administrative
reasons were not acceptable " there is no excuse for
18 months, two years or three years".[98]
He doubted if in practice an early refusal would be as welcome
as suggested. We recommend a one-off review of all outstanding
licence applications of over 18 months, and the provision to the
Quadripartite Committee of the resultant list, together with an
explanation for the delays.The length of delay in reaching
a decision is in a small number of cases unacceptable. We recommend
that serious thought should be given to a form of mechanism to
trigger a decision where the delay has become excessive.

64. The Director-General of the DMA noted that companies
were in a difficult position and did not want to rock the boat,
but that " if there is a clear body of law then I guess that
companies may respond with some sort of action..".[100]
Lord Scott agreed that the existence of purposes might open up
the possibility of challenge on the grounds of the grant or refusal
of a licence as being outwith a scheduled purpose.[101]
Ms Baxendale did expect more judicial reviews, whether or not
successful.[102]
The Secretary of State also accepted that the new statutory basis
might make it easier for third parties, for example NGOs, to obtain
judicial review of decisions.[103]
Lord Scott was of the view that it would still be a problem for
third parties to establish locus standi. [104]
The Secretary of State noted the possibility of judicial review,
and also told us that in making decisions he was always conscious
of that possibility.[105]